Permission for judicial review refused as Doncaster Council seek decision against the closure of Doncaster Sheffield Airport

In a judicial review brought by Doncaster Metropolitan Borough Council (“Doncaster Council”) to prevent the closure of Doncaster Sheffield Airport (the “Airport”), Doncaster Sheffield Airport Limited (“DSA”) a private entity operating the Airport, was found to be amenable to judicial review.

The court held that despite the claim being brought in time (albeit at the outer limits of promptness) the grounds of challenge were not ‘arguable’ with a realistic prospect of success, and permission was refused.

Background

The Airport opened in 1991 and, whilst airlines such as easyJet and Ryanair operated passenger flights from the Airport, only Tui and Wizz Air operated a based aircraft. On 3 June 2022, Wizz Air announced its withdrawal of its based aircraft, effective from 10 June 2022.

As a result of Wizz Air’s actions, in July 2022 DSA launched a strategic review of the Airport which involved a consultation and engagement programme with stakeholders on the future of the site.

As part of the strategic review, several meetings took place between Doncaster Council, South Yorkshire Mayoral Combined Authority and DSA. Both Doncaster Council and the Combined Authority were active in trying to keep the Airport open and argued there would be a huge impact on jobs and the local economy. However, on 27 September 2022, the Peel Group (“Peel”) (the parent company of DSA) issued a public announcement confirming that, following conclusion of the strategic review and engagement with the various stakeholders, the decision had been made to close the Airport. Aviation services were to start winding down from 31 October 2022, with all commercial flight activity ceasing on 4 November 2022, and the Airport closing on 18 November 2022. Doncaster Council’s claim for judicial review was subsequently issued on 2 November 2022.

Reviewability

The first issue the court considered was whether DSA’s decision to close the Airport was judicially reviewable. DSA argued that judicial review could not be applied to the decision to close the Airport as DSA is a private entity without public functions.

While the court agreed that DSA’s activities are mainly commercial, (DSA’s powers being derived from articles of association), the court considered that DSA’s decision to close the Airport could be seen as discharging a public function. Therefore, permission for judicial review was granted in relation to that decision.

The court held that a challenge of the lawfulness of the decision was properly arguable. Given that DSA’s decision affected substantial numbers of members of the public, because of the resulting loss of jobs and a slump in local economic growth.

DSA also provided services to the police, coastguard and military; a public service that will now be impacted. Doncaster Council also predicted this impact to be mirrored in the government’s ‘levelling-up’ agenda, of which it saw the Airport as having an opportunity to contribute to connectivity, economic output, productivity and exports in the North of England. The combination of this and the above features meant that permission for judicial review would not be refused on this ground.

Standing

The court held that Doncaster Council did have sufficient interest as the Airport is within its administrative area and considered a key asset. The Airport had been included in Doncaster Council’s future plans for the area and is a significant piece of infrastructure. Doncaster Council also had a statutory power to begin proceedings ‘in the pursuit of what it judges appropriate in the promotion and protection of the interest of the inhabitants of its area’.

Since the announcement of the DSA’s strategic review, Doncaster Council had been seen as a ‘key stakeholder’ in the Airport and was consistently referred to as such throughout the process. The court held that in these circumstances Doncaster Council had demonstrated sufficient interest.

Delay

The Court considered whether the application for judicial review had been brought ‘promptly’ for the purposes of CPR 54.5. Doncaster Council was made aware of DSA’s decision to close the Airport on 25 September 2022 but their claim for judicial review was not issued until 2 November 2022.

While the court considered that the Claimant was at the outer limits of promptness, given that Doncaster Council had known that the closure of the Airport was a possible outcome of the strategic review process, the court did not uphold the Defendant’s complaint of delay. This was based on the events following announcement of the DSA’s strategic review. For example, Doncaster Council had been proactive in looking at alternative routes to the Airport’s closure. They were also heavily involved in attempting to progress matters with potential third-party purchasers and sent letters in the interim threatening proceedings. The court considered that Doncaster Council led discussions and efforts to prevent the Airport’s closure and, in doing so, showed enough promptness to not be seen as causing delay.

Consultation

DSA regularly described their strategic review as a ‘consultation’. Doncaster Council argued that this meant that the Sedley Requirements of a lawful consultation had been triggered, meaning breach of these requirements, including provision of sufficient information, and adequate time for consideration and response, would be a ground for judicial review.

It was argued by Doncaster Council that the ‘consultation’ effectively only tabled one option for consideration: the closure of the Airport. Doncaster Council claimed this was grounds for the review on the basis that the proposals were only at a formative stage and that Doncaster Council’s responses had not been conscientiously taken into account.

The court disagreed and held that the strategic review had not been approached with a predetermined position or with a closed mind. The court took the view that Peel had considered several options and were transparent with Doncaster Council about their views in response to their proposals, including the decision not to take on additional debt financing. There could be no ground for judicial review in these circumstances.

Reasonableness

DSA’s decision to refuse the £7m bridging grant was challenged for being irrational, that is, so unreasonable that no other reasonable authority could have come to that decision. This grant would have created a 13 month period in which proposals for the purchase of the Airport could be considered. DSA issued their decision to reject this on 25 September 2022, explaining that they could not responsibly accept public money for such a highly uncertain process.

Having examined the context and circumstances of the decision, including the Airport’s financial position and its financial history, the court held that DSA’s decision to refuse the grant could not be said to have been beyond the bounds of public law reasonableness.

The court was also not persuaded by Doncaster Council’s ground of fetter and did not allow permission and dismissed the parallel application for interim relief.

Commentary

Whilst it is not unheard of for judicial review claims to be brought against private non-statutory bodies, this judgment provides helpful commentary on the principles and cases that should be regarded in these circumstances. While Doncaster Council was successful in establishing the amenability of an airport operator to judicial review in this case, the decision demonstrates that there remains a high hurdle to proceed to permission in judicial review when significant financial concerns are in play and the entities in question have shareholders and directors’ duties to balance. It therefore remains to be seen whether this decision on amenability will embolden other key stakeholders in bringing similar challenges against airport operators should there be decisions to close other airports.

The decision reiterates the need and importance of bringing claims as soon as practically possible, so as not to fall foul of the requirement for promptness. This is particularly pertinent when the decision under challenge was communicated as a possibility in advance of it being made, and the claim was issued after the date given for the commencement of closure.

Article co-authored by Jasmine Feld, Trainee Solicitor at CMS.